RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20070001409 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Director

Mrs. Victoria A. Donaldson

Analyst


The following members, a quorum, were present:


Mr. Mark D. Manning 

Chairperson

Mr. John T. Meixell

Member

Mr. Qawiy A. Sabree

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his previous requests for removal of his noncommissioned officer evaluation report (NCOER) for the period September 2004 (sic) through December 2004.

2.  The applicant states that the rater and senior rater on the contested report were not qualified to rate him.

3.  The applicant provides three letters in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060009096, on 20 July 2006.

2.  The applicant provided three letters which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrants consideration by the Board.

3.  The two letters provided were prepared by a retired sergeant first class (SFC).  The SFC class stated that she served with the applicant during the period January 2004 through July 2004 at the Combat Equipment Battalion-Qatar prior to his departure to Camp Victory, Bagdad, Iraq in July 2004.

4.  The SFC contends that the applicant was sent to Camp Victory for a temporary duty (TDY) assignment not to exceed 30 days.  She continues that they were informed that if the applicant's TDY assignment extended beyond 90 days, then he would be the sole responsibility of Major H****n who was the direct supervisor while TDY.

5.  The SFC contends that the unit was notified in early September 2004 that the applicant would remain in Bagdad until the mission ended and that he would be rated by Major H****n since he was TDY longer than 90 days.

6.  The SFC argues that Major H****n was allowed to submit the applicant for award of the Bronze Star Medal but was not allowed to prepare the applicant's NCOER.  She concludes that the rating officials that prepared the NCOER did not meet the minimum qualifications for rating the applicant.

7.  The applicant also provided a letter of support from a master sergeant (MSG). The MSG stated that she was assigned to the Combat Equipment Battalion-Kuwait from 12 September 2003 through 14 September 2004 and served most of her tour in Iraq.  She continues that the missions of the unit could not be accomplished without the aid of the Combat Equipment Battalion-Qatar.

8.  The MSG argues that several Soldiers rotated in and out of Qatar during her tour, but no one from Qatar spent more time in Iraq than the applicant.

9.  The MSG argues that the applicant received a change of rater NCOER from the Combat Equipment Battalion-Qatar when it was determined that he would be staying in Iraq.  The MSG contends that upon completion of his mission the applicant received a NCOER from Major H****n which was dismissed by the Combat Equipment Battalion-Qatar command and a new NCOER was generated by the  Combat Equipment Battalion-Qatar.

10.  The MSG argues that the applicant was denied numerous promotion opportunities because of this NCOER.

11.  The MSG concluded that the applicant should not have been rated by the Combat Equipment Battalion-Qatar personnel and should have been rated by Combat Equipment Battalion-Kuwait.  She further concluded that the NCOER should be removed from the applicant's official military personnel file.

12.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), paragraph 6-6 states an NCOER accepted for inclusion in an NCO’s official record is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 6-10 states the burden of proof in an NCOER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCOER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  





13.  Army Regulation 623-205, paragraph 2-8 states the rater is the person in the rating chain who is most familiar with the day-to-day performance of the rated NCO; most directly guides the rated NCO’s participation in the organization’s mission, and has been designated and has served in that capacity for at least   90 rated days.  Exceptions to this policy are provided in paragraphs 3-30 and    3-33.  Paragraph 2-1 states the senior rater uses his or her position and experiences to evaluate the rated NCO from a broad organizational perspective.  His or her evaluation is the link between the day-to-day observations of the rated NCO’s performance by the rater and the longer-term evaluation of the rated NCO’s potential by Department of the Army selection boards.  

14.  Army Regulation 623-205, paragraph 3-30 states a report will be submitted whenever the designated rater is changed as long as the minimum rater qualifications are met.  Rater changes include, among other reasons, when the rater or rated NCO departs on extended TDY (and refers to paragraph 3-31).

15.  Army Regulation 623-205, paragraph 3-31(b) states that an NCO on TDY (other than for school) who is not responsible to rating officials in his or her parent organization will be rated by the TDY supervisor according to table 3-5.  The TDY supervisor will ensure that a rating scheme is published.  Paragraph   3-31(c) states that an NCO on TDY who remains responsible to rating officials in his or her parent organization will continue to be rated for that period, regardless of its length, by the normal rating officials.  Memorandum input from officials at TDY location is optional.

16.  Army Regulation 623-205, table 3-5 prescribes TDY supervisor’s reports (other than TDY to attend school).  It states that when the Soldier is TDY regardless of the length and remains responsible to the parent unit, memorandum input to the rater is optional.

17.  Army Regulation 623-205, table 3-5 also prescribes the evaluation report requirements when the rated NCO is TDY for less than 90 days or for more than 90 days and is responsible to the TDY unit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the NCOER for the period September 2004 through December 2004 should be removed from his official military personnel files was carefully considered and determined to be without merit.

2.  The supporting statements provided merely provide a timeline of the applicant's duty assignments which were discussed in the previous case.  These statements are insufficient to amend or delete the NCOER as requested.

3.  The applicant's records do not show that rating responsibility was relinquished to Combat Equipment Battalion-Kuwait and as such, the NCOER prepared by Combat Equipment Battalion-Qatar personnel was prepared by the correct rating officials.

4.  There is no evidence in the available records and the applicant has failed to provide sufficient evidence showing that the rating chain of the contested NCOER was not qualified to perform as the rater and senior rater.  Absent such evidence there is no basis to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_MDM___  _ JTM___  __QAS__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20060009096, dated 20 July 2006.




__Mark D. Manning __
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.